United States Court of Appeals

For the First Circuit

No. 15-1779
UNITED STATES OF AMERICA,
Appellee,
v.
BRIAN ERICK MONTES-FOSSE,
Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]

Before
Torruella, Selya, and Barron,
Circuit Judges.

Lydia Lizarrbar-Masini, on brief for appellant.

Susan Z. Jorgensen, Assistant United States Attorney, Rosa
Emilia Rodrguez-Vlez, United States Attorney, and Nelson PrezSosa, Assistant United States Attorney, Chief, Appellate Division,
on brief for appellee.

May 31, 2016

TORRUELLA, Circuit Judge.

After Defendant-Appellant

Brian Erick Montes-Fosse ("Montes") pled guilty to aiding and

abetting the robbery of a postal worker, the United States District
Court for the District of Puerto Rico sentenced him to a term of
51 months' imprisonment and 3 years' supervised release.

During

the sentencing hearing, the district court determined that Montes

should receive a sentencing enhancement under the United States
Sentencing Guidelines (the "Guidelines") because a firearm was
brandished or possessed during the robbery.

The district court

also found that Montes was not entitled to a downward adjustment

for playing a minor role in the offense.
sentence.

Montes now appeals his

We affirm.
I.
When a defendant appeals after a guilty plea, "we glean

the

relevant

facts

from

the

change-of-plea

colloquy,

the

unchallenged portions of the presentencing investigation report

(PSI Report), and the record of the disposition hearing."

United

States v. Vargas, 560 F.3d 45, 47 (1st Cir. 2009).

On June 30, 2014, the victim -- a United States Postal
Service ("USPS") worker -- was delivering mail in Mayagez, Puerto
Rico.

The victim was seated in her USPS vehicle when Alipio Soto-

Montalvo ("Soto") approached.

With a gun in hand, Soto demanded

that the victim turn over the packages in her vehicle.

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After she

placed several parcels on the front seat, Soto took two or three
of the packages and fled the scene on foot.
Montes had driven Soto to the scene.

Montes would later

acknowledge having "taken [Soto] earlier the day to the place where
the robbery occurred for the purpose of committing that robbery."
At some point after the robbery, a witness at the housing project
where both men lived overheard them discussing the crime and
"warning of a heavy police presence" in the area.1
Montes and Soto were arrested in October and September
2014, respectively.

Montes pled guilty to one count of aiding and

abetting the robbery of a USPS employee under 18 U.S.C. 2114(a)

and 2, and Soto to aiding and abetting the carrying, using, and
brandishing of a firearm during and in relation to a crime of
violence under 18 U.S.C. 924(c)(1)(A)(ii) and 2.
Under Montes's written plea agreement, Montes and the
Government agreed to the following Guidelines recommendations:
Montes

would

receive

base

offense

level

of

20

under

U.S.S.G. 2B3.1(a), with a 2-level increase because post office

property

was

taken

under

U.S.S.G. 2B3.1(b)(1);

5-level

increase because a firearm was brandished or possessed during the

robbery under U.S.S.G. 2B3.1(b)(2)(C); a 3-level reduction for

It is unclear from the record whether Montes was warning Soto

or vice versa.
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acceptance of responsibility under U.S.S.G. 3E1.1; and a 2-level

reduction in light of Montes's minor role in the crime under
U.S.S.G. 3B1.2(b).

Montes reserved the right to argue against

the 5-level weapons enhancement.

With that enhancement, the

Guidelines calculation yielded a total offense level of 22, which

correlates to a Guidelines range of 41 to 51 months' imprisonment
for an offender with a Criminal History Category ("CHC") of I.2
At the sentencing hearing, the district court applied
the 5-level weapon enhancement and rejected the parties' joint
recommendation for a 2-level minor role reduction, both over
objections from Montes.

Based on a total offense level of 24 and

a CHC of I, Montes had a Guidelines range of 51 to 63 months'

imprisonment and was sentenced to 51 months' imprisonment and 3
years' supervised release.
II.
Where, as here, "the moving party raises an objection
below,

sentencing

determinations

are

reviewed

for

abuse

of

discretion," with the district court's factual findings subject to

clear error review and its interpretation of the Guidelines to de

The parties did not stipulate as to a CHC in the plea agreement.

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novo review.

United States v. Lasseque, 806 F.3d 618, 623 (1st

Cir. 2015).
A.

U.S.S.G. 2B3.1(b)(2)(c):
Section

2B3.1

of

Brandishing a Firearm

the

Guidelines

provides

5-level

increase "if a firearm was brandished or possessed" during the

commission of a robbery.

U.S.S.G. 2B3.1(b)(2)(c).

During the

sentencing hearing, the Government contended that "it would be

impossible for Mr. Montes not to have known that [Soto] had a
firearm," as Soto was carrying the gun "at all times" before the
robbery.

To the contrary, Montes contends that this enhancement

is inapplicable because the evidence did not demonstrate that he

had advance knowledge of the gun.

See Rosemond v. United States,

-- U.S. --, 134 S. Ct. 1240, 1248-49 (2014).

But, for purposes

of 2B3.1(b)(2)(c), "the proper inquiry is whether the district

court could find, by a preponderance of the evidence, that it was
reasonably foreseeable to [Montes] that [Soto] would brandish or
possess a weapon during the robbery," and "not whether [Montes]
had actual knowledge of the gun prior to the robbery."
806 F.3d at 624.

Lasseque,

Indeed, when imposing the enhancement, the

district court noted that the Guidelines contained no knowledge

requirement.
"We have stated before that guns are often 'tools of the
trade' when it comes to certain offenses, and that an awareness of

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the general plan is sufficient to infer knowledge that the weapons

would be used to carry that plan through to completion."

Id.

Accordingly, we have determined that the use of a gun is reasonably

foreseeable in the context of bank robberies, see id., and certain
drug offenses, see United States v. Fermin, 771 F.3d 71, 83 (1st
Cir. 2014).

Soto contends that, as opposed to a bank robbery or

drug deal, "a knife or blade could have sufficed to rob a single
postal worker on duty delivering packages."

The possibility that

Soto may have used a less deadly weapon, however, does not mean
that the use of a gun was not reasonably foreseeable.

Montes does

not dispute that he was aware that Soto had ventured to that area
for the purpose of robbing a postal worker in broad daylight:
even if Montes had not seen the weapon, as he contends, it would
have been reasonably foreseeable that Soto would use a gun to
ensure that the postal worker gave him the packages and in case he
encountered any resistance from the victim herself or any other
passerby or authority.

See United States v. Spinney, 65 F.3d 231,

237 (1st Cir. 1995) ("[N]ot even the most sanguine criminal would
expect

clear

sailing

without

some

menace

in

the

wind.").

Accordingly, the district court did not clearly err in determining

that the application of 2B3.1(b)(2)(c) was warranted here.

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B.

U.S.S.G. 3B1.2(b):

Minor Participant

Section 3B1.2 of the Guidelines allows for a 2-level

reduction where "the defendant was a minor participant" in the
offense.

U.S.S.G. 3B1.2(b).3

A minor participant is one "who

is less culpable than most other participants in the criminal

activity, but whose role could not be described as minimal."
U.S.S.G. 3B1.2 cmt. 5.

The defendant bears the burden "of

proving that he is both less culpable than most others involved in

the offense of conviction and less culpable than most other
miscreants convicted of comparable crimes."

United States v.

Ortiz-Santiago, 211 F.3d 146, 149 (1st Cir. 2000).

"Role-in-the

offense determinations are notoriously fact-sensitive," and the

district court's decision to apply a minor-role reduction is
subject to clear error review.

Id. at 148-49.

Accordingly,

"absent a mistake of law, battles over a defendant's status will

almost always be won or lost in the district court."

Id. at 149

(internal formatting omitted) (quoting United States v. Graciani,

61 F.3d 70, 75 (1st Cir. 1995)).

As a threshold matter, Montes contends that the Government's

arguments on appeal that he did not play a "minor role" qualify as
a breach of the plea agreement. Because it is clear under our
case law that the district court did not clearly err in determining
that Montes was not entitled to this adjustment, we need not decide
whether the Government's arguments, made on appeal but not before
the district court during sentencing, should be disregarded.
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This

case,

however,

gives

us

pause.

Montes

has

consistently denied that he was involved in the planning of the

crime, and neither the Government nor the Probation Office has
stated otherwise.

The record establishes only that Montes drove

Soto to the scene of the crime (albeit with full knowledge that a
crime would be committed) and later discussed the heavy police
surveillance

in

the

area

with

Soto.

During

the

sentencing

hearing, however, the district court implied that Montes "scope[d]

out the place" prior to the robbery.

As Montes suggests, the use

of the phrase "scope out" suggests that Montes was involved in the
planning of the offense.

In the circumstances of this case, a

statement by the district court inflating a defendant's role in

the crime, without any record basis for this assertion, may well
be an indicator of error.
Nevertheless, the district court's subsequent statements
indicate that it understood Montes's more limited role in the
offense.

After the district court expressed its doubts as to the

minor role adjustment, defense counsel clarified that Montes only

"drove . . . [Soto] to this place and left him there," to which
the district court replied, "I know, but he was taking him to the
place where the robbery occurred for the purpose of committing the
robbery, so he knew a robbery was going to be committed."

In

light of this exchange, we are satisfied that the district court

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understood that Montes did not help plan the offense.

Rather than

basing its conclusion on Montes's involvement in the underlying

scheme, the district court clarified that the act of driving his
accomplice to the scene of the crime, with full knowledge of what
was to ensue, precluded a minor-role adjustment in this instance.
To be sure, we typically have upheld a district court's
decision not to grant a role-in-the-offense adjustment where the
defendant has more extensive involvement in the underlying crime.
See, e.g., United States v. Melndez-Rivera, 782 F.3d 26, 29 (1st
Cir. 2015) (affirming denial of minor role adjustment where "the
appellant was present for the planning of the scheme and deeply
involved in its execution"); Vargas, 560 F.3d at 49-51 (affirming
the

denial

defendant's]

of

minor-role

prior

adjustment

participation

in

the

"in

light

of

transportation

[the
of

contraband, his help in loading the truck, the amount of money

paid to him, the quantity of drugs that had been entrusted to his
care, and his willingness to discuss a role in future deliveries");
United States v. Morales-Machuca, 546 F.3d 13, 24 (1st Cir. 2008)
(affirming denial of minor-role reduction where the defendant "was
in telephonic contact with the other defendants who were physically
participating

in

the

robbery;

was

supposed

to

pick-up

the

defendants after the March 27, 2002 robbery; supplied the Taurus
9mm pistol that [was involved in] the shoot-out; and enjoyed a

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share of the stolen money").

Montes did not retrieve Soto from

the scene, provide a weapon, assist in planning the crime, or take

any of the stolen packages following the robbery.

Still, our

deferential standard of review militates against reversal.

No
adjustment.

defendant

is

entitled

to

minor-role

downward

See United States v. Santos, 357 F.3d 136, 143 (1st

Cir. 2004) ("[E]ven those who serve purely and simply as drug
couriers

are

not

automatically

guaranteed

mitigating

role

reductions."); cf. Melndez-Rivera, 782 F.3d at 29 ("[A] defendant

need not be the key figure in a conspiracy in order to be denied
a mitigating role-in-the-offense adjustment.").

The district

court found unpersuasive the fact that Montes did not have more
extensive involvement in the robbery:

according to the district

court, Montes drove the assailant to the scene of the crime,

knowing full well that the assailant would commit robbery.

See

United States v. Garca-Ortiz, 657 F.3d 25, 29-30 (1st Cir. 2011)
("The fact that some other accomplice may be more culpable than
the defendant does not necessarily mean that the defendant's role
in the offense is minor.").4

The district court's determination

was not unreasonable, and we therefore affirm its decision not to

Indeed, Montes makes only a passing argument that he is "less

culpable than the mine-run of those who have committed similar
crimes," a required showing for those hoping to avail themselves
of the minor-role reduction. Garca-Ortiz, 657 F.3d at 29.
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grant Montes a minor-role downward adjustment.

See United States

v. Dilorio, 948 F.2d 1, 5 (1st Cir. 1991) ("[A] district court's

determination under the Guidelines of a defendant's role in an
offense

cannot

be

clearly

erroneous

where

it

is

based

on

reasonable inference drawn from the undisputed facts.").

III.
Because we do not find that the district court clearly
erred in either applying the weapons enhancement or in declining
to apply a minor-role reduction, we affirm Montes's sentence.
Affirmed.

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